MTSHIYA J: On 23 January 2012, the applicant issued
summons against the respondent (first defendant in the main action) and Messrs
Manase and Manase Legal Practitioners as the second defendant. The action was
for:-
“(a) payment of USD 9 643-20 due and owing to the
plaintiff
(b) Interest on the said amount at
the prescribed rate calculated from
the 21st of September
2011 to the date of full and final payment both dates inclusive.
(c) Costs of suit”.
The background to the issuance of the summons was that in September 2009 Mr Tavenhave,
who was then practising as a professional assistant under the second defendant,
Manase and Manase Legal Practitioners, instructed the applicant (plaintiff in the
main action) to execute on some warrants for the ejectment and execution
against movable properties in respect of the following matters:-
1. Mervyn Susman Trust
v Ethanasia Court Residents; and
2. Ramson (Pvt)
Ltd v Edgars (Pvt) Ltd.
The applicant raised invoices
amounting to a total of US$21 625-20 for his
services. Initially a total amount of US$6
982-00 was paid, leaving a balance of US$14 643-20. In July 2011 the respondent
made a further payment of US$5000-00 and thus reducing the balance outstanding
to US$9 643-20 as at that date. That is the amount in the applicant's
claim.
On 7 February 2012 the defendant (Tavenhave-Machingauta Legal Practitioners)
entered an appearance to defend. On 8 February 2012 Messrs Manase and Manase
Legal Practitioners, who were cited as the second defendants in the main
action, also entered an appearance to defend.
On 16 February 2012 the applicant filed a notice of withdrawal in respect of
Manase and Manase Legal Practitioners. This also led to a formal withdrawal of
their notice of appearance on 20 February 2012.
Mr Moyo for the applicant submitted that notwithstanding the fact that
initial instructions were to Manase and Manase Legal Practitioners, the
subsequent conduct of the respondent demands that it be estopped from denying
liability. He submitted that Mr Tavenhave of the respondent had taken over the
clients and represented to them that he was seized with the matters. That being
the case, he went on, the respondent, in whom Mr Tavenhave is a senior
partner, was properly cited. He (Mr Tavenhave) had indicated in
correspondence that he was indeed still seized with the clients' matters.
Furthermore, Mr Moyo argued, the respondent had made payments to the
applicant and had never denied the debt. He dismissed the “defence” that the
respondent was merely assisting the applicant to recover what was due to him.
Mr Mudimu for the respondent submitted that the applicant had cited a
wrong party because in 2009 Mr Tavenhave had acted as an employee of
Manase and Manase Legal Practitioners. He said the respondent had never at
anytime assumed agency for the clients involved in the matter. He insisted that
Mr Tavenhave had merely assisted the applicant in recovering his dues
and had never accepted liability.
My initial reaction after reading the papers was that the applicant had cited a
wrong respondent. However, after careful consideration of the matter and upon
hearing arguments, I came to the conclusion that the respondent was properly
cited. This is indeed so because of the respondent's own conduct.
It is clear to me that upon forming his own Legal Law firm
on 1 February 2011, Mr Tavenhave took over the clients in
question from Manase and Manase Legal Practitioners. That position was known to
the applicant and the clients involved. That is why on 10 August 2011 the
applicant addressed the following letter to Mr Tavenhave:-
“RE: STATEMENT OF ACCOUNT AS AT 31ST JULY 2011
Thank you very much for the US$5000-00 which was
transferred and credited to the company's Stanbic account on 26th
July 2011.
We attach herewith our receipt A1712 for US$5000-00 and a
copy of statement of account US$9 643-20 calculated as below:-
Per our letter 16th May 2011:-
Mervyn Susman Trust vs Enthanasia Court Residence
12 232-20 DR
Less:Paid
26/07/11
5 000-00
CR
7 232-20 DR
Add: Ramson P/Ltd vs Edgars Stores (Cameroon
Street) 2 411-00 DR
Amount now
due
9 643-20
DR
We await to hear from you, how the remaining amount due
will be settled.
Yours faithfully
FELIX TINAYENDA
ASSISTANT ACCOUNTANT
MESSENGER OF COURT – HARARE”
It will be noted that at the end of the letter the applicant still relies on
the respondent to settle the outstanding amount. He does not call for further
“assistance” from the respondent. He knows the respondent is liable and has
admitted liability as evidenced by the part payment effected by the respondent
on 26 July 2011. That was after the respondent came into existence on 1 February
2011.
The respondent itself confirmed that it was indeed seized with the matters. On
1 November 2011 the respondent addressed the following letter to the applicant:
“RE: MERYVN SUSMAN TRUST & RASEN HOLDINGS (PVT) LTD-
BALANCE $9 643-00
Kindly be advised that our client is no longer
resident in Zimbabwe and as such it is difficult to contact them, the last time
they were in Zimbabwe was when they paid the US$5 000-00.
However they advised us through the email that they will be
in the country on the 28th of November and promised to settle your
account as they have already shown commitment by paying the initial deposit.
We heard that you are contemplating litigation, we
urge you to wait until then so to avoid wastage of resources and time as our
client is not denying liability.
We thank you in anticipation of your usual co-operation.
Yours faithfully
TAVENHAVE-MACHINGAUTA
LEGAL PRACTITIONERS” (my own underlining)
The above letter talks of our client and confirms that it was the
respondent who was in communication with the clients - and not Manase and
Manase Legal Practitioners. That removes any doubt as to who should have been
cited in this matter. Both parties have correctly dealt with the law relating
to partnerships and having identified where liability should lie, I see no
point in revisiting that area of the law.
The respondent, in casu, has indeed conducted
itself in a manner that does not assist it in its alleged defence. In short the
respondent has, in my view, no plausible defence to the applicant's claim and
therefore the applicant is entitled to summary judgment (See Stationery Box
(Pvt) Ltd v Natcon (Pvt) Ltd,
HH 64/10).
I therefore order as follows:-
IT IS ORDERED THAT:
1.
Application for summary judgment be and is hereby granted.
2.
The respondent shall pay the applicant the sum of USD9 643-20 together with
interest thereon at the prescribed rate of 5% per annum calculated from 21
September 2011 to the date of full and final payment; and
3.
The respondent shall pay costs of suit on an attorney and client scale.
Scanlen & Holderness, plaintiff's legal
practitioners
Tavenhave-Machingauta, 1st
defendant's legal practitioners
